Report to the Deputy Attorney General on the Events at Waco, Texas/The Justice Department's Role
IX. The Justice Department's Role: February 28 - March 12, 1993
This section of the report examines the role of the Department of Justice from the beginning of the standoff on February 28 through Janet Reno's arrival as Attorney General on March 12. The activities of the Justice Department following Ms. Reno's confirmation are addressed at pages 249-275 of this report.
B. The Justice Department During the Transition Period
Following the inauguration of President Clinton, the Justice Department was in a caretaker mode, with senior career officials running the day-to-day affairs of the Department, and with Bush Administration holdover Stuart M. Gerson performing the function of Acting Attorney General. In addition, a White House liaison team, led by Webster Hubbell, arrived at the Justice Department on Monday, January 24. Hubbell and his team reported to Gerson, and Gerson reported to the White House.
When the Waco standoff began on February 28, Mr. Gerson was still the Acting Attorney General. Mr. Hubbell and his associates were listed as "assistants to the Acting Attorney General." The Criminal Division was under the direction of Deputy Assistant Attorney General John C. Keeney. No Senateconfirmed appointees of President Clinton had yet arrived at the Justice Department.
C. Acting Attorney General Gerson's Handling of Waco: February 28 - March 12, 1993
After the ATF raid, the FBI notified Acting Attorney General Gerson that ATF had requested that the FBI to assume control of the situation in Waco. Gerson met with Deputy Director Floyd Clarke and Assistant Director Larry Potts (Chief of the FBI's Criminal Investigation Division) in the FBI command center later that day. The FBI told Gerson that it would take over in Waco, but only if it were given full command and control authority at the scene. Gerson agreed, and he called White House Chief of Staff Thomas McLarty late in the day on February 28 or early the next morning (March 1) to explain the situation and to receive permission to deploy the FBI's Hostage Rescue Team to Waco. Hubbell did not participate in any of the discussions on February 28, as he was in Arkansas that day.
In addition to notifying Gerson on February 28, the FBI also notified James S. Reynolds, Chief of the Criminal Division's Terrorism and Violent Crimes Section, of the events in Waco. From that point forward, the Justice Department had two responsibilities: (1) investigating and prosecuting those Branch Davidians who had killed and wounded ATF agents on February 28; and (2) monitoring the FBI's efforts to end the standoff inside the compound through negotiations.
The next day, March 1, 1993, President Clinton telephoned Acting Attorney General Gerson and expressed his interest in events at Waco. Gerson told the President that the FBI would be handling the situation. The President said that he understood that the FBI's philosophy in such situations was to negotiate until the situation was resolved. The President asked to be advised if there was to be any change to that approach and a tactical resolution was under consideration. Gerson agreed, and he telephoned FBI Director Sessions to advise him of the President's request. Sessions, in turn, advised Assistant Director Potts.
On March 1 Terrorism and Violent Crimes Chief Reynolds assigned Mary Incontro, his Deputy Chief for violent crime, to contact the United States Attorney's office in San Antonio and to keep apprised of all developments regarding both the standoff and the investigation and prosecution of those Branch Davidians responsible for killing and wounding the ATF agents on February 28. Thereafter, Incontro and one of the section's line attorneys, John Lancaster, maintained regular contact with the. United States Attorney's office in San Antonio and with the branch office in Waco. Incontro and Lancaster reported whatever they learned to Reynolds. In the meantime, Reynolds stayed in contact with the FBI violent crimes section in Washington, D.C. During the time period before March 12, the Terrorism and Violent Crime Section did not become substantially involved in either the investigation/prosecution of the events of February 28, or in monitoring the ongoing negotiations.
During the March 1 through March 12 period Acting Attorney General Gerson stayed actively involved in the standoff negotiation track. Gerson had determined, in line with the President's understanding of FBI policy, that the FBI's strategy would be to "talk them out, no matter how long it took." Gerson regularly visited the FBI command center for briefings, and he stayed in frequent telephone contact with Director Sessions, Deputy Director Clarke, and Assistant Director Potts. Gerson kept in frequent contact with the President's Chief of Staff and the White House Counsel as well, simply to keep the White House informed of new developments. Gerson also notified Ronald Ederer, then the United States Attorney for the Western District of Texas, that Ederer was to support the FBI in its handling of the standoff negotiations, and that Ederer should work out any problems between the FBI and the Texas Rangers (who were in charge of the ATF shootout investigation).
Soon after the standoff began the FBI requested that Gerson approve the deployment of military vehicles to assist the FBI in undertaking certain limited tactical maneuvers to secure and tighten the perimeter around the compound. The FBI had become concerned about the massive firepower the Davidians possessed, and it became increasingly necessary for the FBI to take steps to secure and tighten the perimeter around the compound. Gerson agreed, and he contacted the Defense Department to arrange for the U.S. Army at Fort Hood, Texas to provide the necessary vehicles. Gerson notified White House Chief of Staff Thomas McLarty that military vehicles would be deployed at Waco for non-offensive purposes, and that no ordnance had been sent. Several minutes later the President called Gerson, requesting an explanation for the deployment of military vehicles. Gerson assured the President that no assault was planned; that the vehicles were necessary to enable the FBI safely to perform certain tactical operations, such as clearing away cars and other obstacles. Gerson assured the President that it was legal for the FBI to use the military vehicles for safety purposes. The President was satisfied with Gerson's explanation, but requested again that he be advised if the FBI were to adopt a more aggressive tactical stance.
On March 8, 1993, Gerson learned that Director Sessions wanted to fly to Waco to negotiate directly with Koresh. Gerson called Sessions and asked him to explain. Sessions said that he felt that, with his background as a former United States Attorney and United States District Judge from the Western District of Texas, he could credibly explain the judicial process to Koresh and talk him into leaving the compound. Gerson was skeptical, and suggested that Sessions would be subjecting himself to danger if he were to insist on a meeting with Koresh. Gerson also explained that it was not good policy for the Director of the-FBI to become operationally involved in a hostage negotiation or barricade situation. Gerson said that if Sessions wanted to go to Waco simply as a morale booster for the law enforcement agents on scene that would be permissible, but otherwise the trip would not be authorized. Sessions did not go to Waco.
In preparation for the arrival of Attorney General Reno on March 12, Gerson decided to pass his responsibility for Waco to Hubbell. Gerson arranged for Hubbell to receive a briefing at the FBI's Strategic Information Operations Center (SIOC).
Gerson remained at the Justice Department until March 19, but his role in the Waco standoff ended on March 12 with Attorney General Reno's arrival at the Department. Gerson did not brief Attorney General Reno about Waco, because the FBI arranged an extensive briefing for her shortly after she was confirmed.